Universal: “Fair use” is still infringing

Universal, in court to defend itself for pulling down a dancing baby video …

Stephanie Lenz's YouTube video of her tot dancing to an old Prince song was pulled down at the request of Universal last year after the music label said that the clip infringed on its copyright. Not content with simply having Universal retract its claim, Lenz and the Electronic Frontier Foundation are out to put the squeeze on Universal for issuing a bad-faith DMCA takedown. But Universal told a judge this week that, even though the clip may in fact be "fair use," it was still "infringement" and therefore the initial takedown notice was made in good faith.

The two sides faced off in a San Francisco court before Judge Jeremy Fogel, with Universal arguing that it simply couldn't be held liable for wrongly issuing a DMCA takedown notice (if, in fact, it actually issued a DMCA takedown notice... another point at issue in the case). It did correctly identify the Prince song playing in the background, and the company does control the rights to song; therefore the claim of "infringement" was correct. QED.

According to Wired, which had a reporter at the hearing, the judge pushed Universal's lawyer to take this position as far as it could logically go. "Are you saying there cannot be a misuse of a takedown notice if the material is copyrighted?" he asked. "I don't think 'fair use' qualifies," Universal's lawyer responded.

Takedown notices make me cry

This isn't a surprising position for the company to take. In its reply to the charges against it, filed several weeks ago, Universal made clear its belief that the original takedown notice was accurate, since fair use is an "affirmative defense" that can overcome an infringement claim, not an assertion that the use didn't violate copyright.

"Plaintiff's exclusive reliance on the affirmative defense of fair use necessarily establishes that Universal’s statement that her use was infringing was true," said Universal. "For there to be a 'fair use,' there first must be an infringing use. Plaintiff’s arguments that her use could be a 'fair use' without infringing, or that Universal must be deemed to have impliedly represented that her use was not 'fair,' are contrary to the Copyright Act and controlling case law."

In one obvious sense, Universal has a good point to make on this issue. It simply can't be correct that copyright holders can be found liable for bad faith takedown notices simply because the use in question turns out to be fair in the end; as we have pointed out many times, no one knows if the use is fair until a judge actually rules.

On the other hand, decades of both common practice and case law have established some general parameters for fair use (see the recent American University project on fair use in video work for an example). No one wants rightsholders to sue over uses that are 99.5 percent likely to be found "fair" in a court, as this would clearly favor companies with deep pockets over everyone else (and is the reason behind laws like California's anti-SLAPP statute).For these reasons, the judge's ruling here will be a compelling read.

No doubt the whole case feels particularly satisfying for the EFF, which has a music label playing defense in court. But Universal makes clear just how it feels about the whole ordeal: "Plaintiff’s inability to state a claim is not surprising. She has no claim, and never came close to alleging one... It is time for this case to be over."